Guest Post: Jurisdictional Aspects of the Article 12(2) Rome Statute Vessel Provision: Some Thoughts on the Provision’s Dogma and Implementation in light of the Comoros Referral

[Solon Solomon will join King’s College of London, Dickson Poon School of Law as of September 2013, and Jackson Nyamuya Maogoto is a Faculty member of the University of Manchester, School of Law.]

Much has already been written on the Comoros referral to the International Criminal Court (ICC) in light of the Mavi Marmara incident (EJIL:Talk!, Opinio Juris, Human Rights Blog and Dov Jacobs Blog). The referral while premised on a legal footing arguably has a second facet which is significant—political. It is as been noted elsewhere (EJIL:Talk!) that this was the first case where an African state referred a non-African state to the Court. The political parameter aside, the Comoros referral introduces two important doctrinal issues which pervade the discussions of this referral. These are article 12(2) of the Rome Statute regarding vessel jurisdiction and the legal discourse around the axiom that all State Parties can refer to the Court possible crimes perpetrated on the territory of a State Party. The authors’ assertion is that the two spectra have wider implications for future cases and thus their elaboration is essential in the realm of the Prosecutor’s response to the Comoros referral.

As far as jurisdiction is concerned, we add our voice to authors who have so far who have held this is asserted. (See EJIL:Talk!, Opinio Juris and Human Rights Blog-spot) In this particular piece we would like to argue that such an assertion is de lege lata and not necessarily the case de lege ferenda. The assertion of jurisdiction derives from article 12(2)’s grammatical reading. However it is imperative to bear in mind that since the Rome Statute is a negotiated treaty, it is subject to wider reflection other than the narrow confines of the black letter provision. In this regard we aver that as a treaty, the Vienna Convention on the Law of Treaties (VCLT) is at play and in this regard invite consideration that the treaty provisions as provided for in the VCLT should be read in their contextual and historical depth, including their negotiation history and the volition of the parties. As such, there are elements that accompany the Rome Statute provisions on vessel jurisdiction which while not embedded in the wording of the provision itself, still constitute part of its essence. The Rome Statute provision was drafted along the lines of article 91 of the UN Convention on the Law of the Sea (UNCLOS). The latter, echoing a strong jurisprudence and treaty tradition stipulates and favours the notion that there must be a genuine link between the flag state and the vessel. This genuine link requirement is critical. While in some instances judicial bodies may have appeared reluctant to assert it, the reason was not its denial, but judicial and academic fears that a strict diligence to the principle would eventually preclude the forging of any nationality bonds, a far worse scenario.

In the MV “Saiga” (No.2) case, the International Tribunal on Law of the Sea expressly stated that the role of the genuine link requirement is to secure more effective implementation of the duties of the flag state. UNCLOS does not envision an arrangement where states just confer nationality to ships and then are not at all engaged in their activities. Nationality is regarded as having a functional character. States try to protect social bonds of attachment against mere formal nationality imposed by the technicalities of law. This functional inquisition is evident in diverse fora. For example in the case of UN sanctions, such as those against Serbia and Iran, the relevant Security Council Resolutions considered the nationality of the vessel based on ownership or contract terms, regardless of the flag under which the ship may sail. (see UN SC Res 787 (1992) and UN SC Res 1929 (2010)). Essentially then, Article 91(1) of UNCLOS should be read in conjunction with article 94, in a way that the exercise of effective jurisdiction over the vessel constitutes one of the necessary conditions for granting nationality. It is thus too long a legal bow to draw that with embryonic jurisprudence on the subject, the ICC will have in mind previous positions and thus reflect on its article 12(2) vessel jurisdiction as not only encapsulating the straight line reading on flag jurisdiction but also the matter of a genuine link with the vessel particularly given the nature of its mandate.

In the case of Comoros, the Mavi Marmara was Comoros flagged just a week before the flotilla incident.  Most of the passengers on the vessel were Turkish citizens and comprised the bulk of the people onboard killed in the incident. While formally, de lege lata, the vessel remains a Comoros vessel and thus part of its territory, de lege ferenda, the substantial links of Turkey with the vessel grants leeway for contestation between the legal and the factual realities. Admittedly the legal baseline is straightforward regarding the legal standing of the flag state but the matter is muddied by the fact that the acts for which the referral was made related to Turkish citizens. To draw into argument, in international practice often when two state entities have claimed representation rights for the same territory, the amalgam of law and fact has tended to be important alongside bright line legal provisions. Legally, the preponderance of Turkish interest does not necessarily erode Comoros jurisdictional rights. However the lattice of interests can lead to a concurrent responsibility over the vessel. This is not fanciful. In the Catan Case, the European Court of Justice held both Russia and Moldova responsible for human rights violations in Transdniestria. The premise was with regard to Russia it was on the basis of its effective control over the region and for Moldova, the fact that the region officially forms part of its territory under international law. In what essentially was a largely a bright line legal scenario, the hard factual reality was also seen as pertinent and in our opinion this stance mitigated making a mockery of the law by slavish adherence to technicalities.

The upshot of the discussion above is our opinion that Comoros and Turkey can lodge a referral on behalf of the Mavi Marmara before the ICC. This said, in order for disorder not to be created by two jurisdictional competing claims, it has to be examined if one of the two states has priority in bringing the case to the ICC. While international criminal law does not provide for such priority, this can be established by reading article 12(2), in tandem with the VCLT, pursuant to object and purpose and the extant ICC mandate to punish serious crimes. In the context of the flotilla incident, this is alleged crimes perpetrated onboard the vessel allied with protection of the vessel’s crew and passengers. These goals are common between the provision and the law of diplomatic protection. It is under this lens that the law of diplomatic protection can be useful. The latter does establish that Turkish rights over the vessel should take precedence. The diplomatic protection framework has the protection of the crew as its main aim. The Commentary to Draft Article 19 on Diplomatic Protection clarifies that the right of the flag state to institute proceedings was rendered critical due to the fact that one state would seek redress on behalf of all crew members in light of the crew’s multinational character. In the seventh report on rules of diplomatic protection, the flag state is mentioned under the rationale that ships crews are vulnerable and require all the protection they can get. While in the end redress by the flag state was retained, there were objections in its inclusion in the relevant provision. In light of this, flag state intervention is trumped by that of the nationality of the crew state. The Comoros intervention should recede before any Turkish initiatives. Indeed, this has been the case. It is important to recall that three years since the incident, it is Turkey that has actively participated or instituted proceedings in international and domestic fora. (See UN Panel Report, Human Rights Council, Turkel Committee and Turkey Ministry of Foreign Affairs Interim Report)

It can even be argued that Turkish jurisdiction on the vessel could well verge on being exclusive. The Mavi Marmara while registered under the Comoros flag, reportedly continued to fly the Turkish flag. According to article 92(2) of UNCLOS “A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.”

In international theory and practice there is disagreement whether the fact that a vessel is stateless means that all states can exercise jurisdiction over it or just the crew’s nationality state. If Mavi Marmara is deemed a stateless vessel, only Turkey would be able to legally protect the crew’s legal interests in the international and domestic legal fora. The vessel would not be considered Comoros territory. With Turkey not being an ICC member, Comoros or any other ICC member state can not refer the case even on the grounds that the alleged crimes were perpetrated on the territory of a member state. Rather it is Turkey that can refer the case to the ICC, not only by asking the Prosecutor to intervene on a proprio motu base, but also by lodging a referral in tandem with article 12(3).

The second issue we would like to comment upon relates to the irrelevance of the Comoros flag state link since any State Party could have made the referral, once the alleged crimes were committed on the territory of a State Party. (See EJIL:Talk! and Dov Jacobs Blog) Indeed, although this is the legal mantle that governs the referral system, it is important to stress that the latter does not exist in abstracto but as part of the Rome Statute. As such, any interpretational platforms it introduces and any practical solutions it may suggest should not collide with good faith. As is the case with the article 12(2) vessel jurisdiction regarding state referral of crimes committed in another state party, there is a de lege lata–de lege ferenda tension that we think can not be ignored.

Indeed, State Parties have the right to refer to the Court alleged crimes perpetrated in the territory of a State Party. The doctrine is not questioned. Our concern relates though to how this discretion is implemented. On this point, we would like to add our voice to the skeptical tone elsewhere (Dov Jacobs Blog) and argue that any such discretion must be implemented in good faith and in respect of every state’s sovereign prerogative to freely establish its interstate political agenda.

It would be erroneous to conclude that any state referral discretion should be interpreted as the right of any member state at a time of its choosing and its discretion as to a situation to intervene, irrespective of any domestic, regional or third-party understandings. This would lead to chaos and mistrust in international relations. Rather it should be conceded that any state referral discretion should relate to cases where the state which has the primary obligation of doing so, has appeared unable to perform such function. As such, judicial comity where courts hold back from adjudicating in cases other judicial bodies are seized with a case, could apply mutatis mutandis in interstate relations, with states holding back in the submission of judicial complaints once another state is already seized of the matter.

For three years since the flotilla incident, and despite intense activity on the matter in various judicial and quasi-judicial bodies, Comoros remained silent. It was once Turkey seemed to close the issue that Comoros stepped in and fanned the flames anew. (See Dov Jacobs Blog) Turkey was thus caught in off guard with a fait accompli. It must either side with Comoros, betraying the understanding it has reached with Israel or find itself opposite Comoros in this complex legal and political drama. On a similar vein, Greece and Cambodia are two other states which could without their initiative or action, find themselves engaged in the proceedings, if the Prosecutor decides to open an investigation being as they are State Parties on whose territory the alleged crimes took place in a mechanistic reading of article 12(2) since the flotilla encompassed vessels registered to them and thus part of their territory. (See Opinio Juris and Dov Jacobs Blog) It is our position that these scenarios should be discouraged. While the technical legalities of the drama may be clear, the practical political realities of international law are not far behind more so on this matter. Placing states with no dispute history between them (the case of Israel and Cambodia or Israel and Greece) or states sharing a right (Turkey and Comoros) opposite each other in litigations which they have not commenced or approved puts into question the stability principle in interstate relations. Ultimately, it casts doubts on the credibility of international law itself and this is something that has to be addressed.

In this short note, we deliberately did not enter in any issues of admissibility, since we strongly believe that jurisdictional issues raise interesting points on their own which should merit a thorough discussion among international legal theory as well as by the Court itself.